We find merit in the submission of Mr.
Nadkarni that Section 52 of the Act contemplates a suit or
other proceeding against the authority under the Act if cause
of action arises under the Act. No doubt, the Apex Court has
clearly held that the land acquisition proceedings initiated
under the Act by issuing notifications under Sections 4 and 6
cannot be challenged by filing a suit since the Act is Code by
itself and only remedy available to such aggrieved persons is
to approach the Constitutional Courts i.e. the High Court or
the Supreme Court. But in our considered view, the suit to
recover the amount by way of interest in terms of Section 34
of the Act is clearly maintainable under Section 9 of C.P.C.
We are in respectful agreement with the view taken by the
learned Single Judge in the case of Bhagwan Kulkarni
IN THE HIGH COURT OF BOMBAY AT GOA
FIRST APPEAL NO.35 of 2007
1. STATE OF GOA
2. THE DY. COLLECTOR (L.A.)
Versus
COMMUNIDADE OF PILERNE,
CORAM :- A. P. LAVANDE &
U. V. BAKRE, JJ.
Pronounced on: 30th April, 2012.
Citation;
By this appeal, the appellants take exception to
the judgment and decree dated 15/11/2006 passed by Ad hoc
Additional
District
Judge-I,
at
Panaji
in
Civil
Suit
No.272/2004 by which the suit filed by the respondent herein
has been decreed. The appellants are the defendants in the
above suit filed by the respondent for recovery of an amount
of Rs.48,79,925/- with further interest at the rate of 15 % p.a.
from
15/03/2002 till actual payment.
The parties shall
hereinafter be referred to as per their status before the trial
Court.
2.
The plaintiff filed the above suit for recovery of
the amount by way of interest under Section 34 of the Land
Acquisition Act ('the Act' for short).
An area admeasuring
290350 square metres bearing Survey No.85/Part situated at
Marra village of Bardez Taluka was acquired by defendant
no.1 for public purpose i.e. setting up of industrial estate.
The acquisition was for the benefit of Goa Daman and Diu
Industrial Development Corporation, Panaji for setting up an
industrial estate.
By award dated 06/08/1993, defendant
no.2 fixed the market rate of the acquired land at the rate of
Rs.10/- per square metre. Though in the award, defendant
no.2 awarded the entire compensation in favour of the
plaintiff, defendant no.2 did not disburse the compensation to
the plaintiff on the ground that the lands allotted to the
tenants had not been demarcated and surveyed separately in
their names and also on the ground that the names of the
tenants were not removed from survey records.
He,
therefore, ordered that the amount of Rs.39,94,106/- be kept
in revenue deposit till formalities are completed by the
Communidade and a clear title was made out by the plaintiff.
By lawyer's notice, plaintiff submitted to
defendant no.2 a
copy of the judgment dated 19/01/1999 passed in Civil Suit
No.111/1998/SR, a copy of the judgment and decree dated
20/11/1992 passed by the Mamlatdar, Bardez Taluka and also
a copy of the order dated 18/02/1998 passed by the Deputy
Collector bringing to the notice of defendant no.2 that all the
formalities as required in the award dated 06/08/1993 were
completed and the plaintiff had clear title in their favour in
respect of the acquired land.
The plaintiff called upon
defendant no.2 to release compensation to the plaintiff along
with the interest as permissible under Act. Thereafter, there
was correspondence between plaintiff and the defendant and
ultimately
directed
by
that
order
the
dated
entire
27/06/2001,
compensation
defendant
no.2
amounting
to
Rs.39,94,106/- in respect of the acquired land be paid to the
plaintiff. The said amount was paid to the plaintiff by cheque
dated 06/12/2001 which was handed over to the plaintiff on
15/03/2002. The plaintiff accepted the said compensation on
15/03/2002 under protest, without prejudice to its contention
that
it was also entitled to interest on the said amount.
Thereafter,
the
plaintiff
gave
lawyer's
notice
dated
22/07/2002 under Section 80 of C.P.C. calling upon the
defendants to pay the interest on the said amount of
Rs.48,79,925/- by way of interest under Section 34 of the Act.
Since defendants did not pay the amount, the plaintiff filed
the suit for recovery of the amount on 30/06/2004.
3.
On behalf of the defendants, written statement
was filed, inter alia, contending that the suit did not disclose
any cause of action and that the suit was barred by
limitation. The defendants also claimed that the plaintiff had
no title to the acquired land.
4.
On the basis of the pleadings of the parties, the
following issues were framed :
1.
Whether
plaintiffs
prove
that
the
defendants are liable to pay interest to the
plaintiffs on rupees 39,94,108/- at the rate of 9%
p.a. from 21/1/1993 to 20/1/1994 and at the rate
of 15 % p.a. from 21.1.94 till 15.3.2002 ?
2.
Whether the plaintiffs prove that plaintiffs
are entitled to an interest at the rate of 15 %
p.a. on sum of Rs.48,79,925/- from 15.3.2002 till
actual payment ?
3.
Whether defendants prove that amount of
compensation has been wrongly paid to the
plaintiffs ?
5.
The plaintiff examined two witnesses namely PW1
Anthony Correia, who was past President of the plaintiff and
PW2
Francis
Cosmos
Communidade.
Fernandes,
the
attorney
of
the
The defendants did not lead any evidence.
By judgment and decree dated 15/11/2006, the trial Court
decreed the suit.
6.
Mr. Rodrigues, learned Additional Government
Advocate appearing on behalf of the appellants / defendants
submitted that the suit filed by the plaintiff was not
maintainable
inasmuch
as
under
the
Act,
no
suit
maintainable to claim any relief available under Act.
is
Mr.
Rodrigues further submitted that the suit filed by the plaintiff
on 30/06/2004 for recovery of the amount was clearly barred
by limitation and as such, the decree passed by the trial
Court is liable to be set aside. In support of his submissions,
Mr. Rodrigues relied upon the judgment of the Apex Court in
the case of Laxmi Chand and another Vs. Gram Panchayat
Kararia and others; AIR 1996 SC 523 and unreported
judgment of this Court dated 05/08/2010 in Writ Petition
No.294/2008.
7.
Per contra, Mr. Nadkarni, learned Advocate
appearing on behalf of the respondent/ plaintiff submitted
that the suit filed by the plaintiff for recovery of an amount
due by way of interest under Section 34 of the Act was
clearly maintainable and was not barred under the provisions
of the Act. Mr. Nadkarni further submitted that Civil Court
had jurisdiction to entertain the suit for recovery of an
amount due by way of interest inasmuch as it is the statutory
liability of the defendants to pay the amount by way of
interest under Section 34 of the Act, since when the
possession of the land was taken, the amount due in terms of
the award, was neither paid nor deposited and as such, the
defendants are liable to pay the interest under Section 34 of
the Act. Mr. Nadkarni invited our attention to Section 52 of
the Act and submitted that the said provision makes it clear
that the suit is maintainable if cause of action arises under
the Act. In support of his submissions, Mr. Nadkarni relied
upon the following judgments :
(i)
Lila Ghosh (Smt) (Dead) Through LR.
Tapas Chandra Roy Vs. State of W.B.;(2004)9
SCC 337.
(ii)
Executive Engineer, Osmanabad Medium
Project,
Osmanabad
Yashwanta
Kulkarni
Vs.
and
Bhagwan
another;
s/o.
(2009)4
Mh.L.J. 593.
(iii)
Vasant
Balkrishna
Wale
Vs.
Vithal
Mahadeo Deshmukh and others; 2005(4)Mh.L.J.
957.
(iv)
The Punjab State Vs. Jhandu Lal and
others; ILR (1967)2 Punjab and Haryana 649.
8.
We
have
carefully
considered
the
rival
submissions, perused the record and the judgments relied
upon.
9.
In view of the rival submissions, the following
points arise for determination in the appeal :
(i)
Whether the suit filed by the respondent was
maintainable ?
(ii)
Whether the suit filed by the respondent was
barred by limitation ?
10.
In order to appreciate the rival contentions, it
would be appropriate to quote sections 31, 34 and 52 of the
Act upon which reliance has been placed by Mr. Nadkarni,
learned Counsel for the respondent. They read thus :
31.
Payment of compensation or deposit of
same in Court – (1) On making an award under
section 11, the Collector shall tender payment of
the compensation awarded by him to the persons
interested entitled thereto according to the
award, and shall pay it to them unless prevented
by some one or more of the contingencies
mentioned in the next sub-section.
(2)
If they shall not consent to receive it, or if
there be no person competent to alienate the
land, or if there be any dispute as to the title to
receive
the
compensation
or
as
to
the
apportionment of it, the Collector shall deposit
the amount of the compensation in the Court to
which a reference under Section 18 would be
submitted :
Provided that any person admitted to be
interested may receive such payment under
protest as to the sufficiency of the amount :
Provided also that no person who has
received
the
amount
otherwise
than
under
protest shall be entitled to make any application
under Section 18:
Provided
also
that
nothing
herein
contained shall affect the liability of any person,
who may receive the whole or any part of any
compensation awarded under this Act, to pay the
same to the person lawfully entitled thereto.
(3)
Notwithstanding
anything
in
this
section, the Collector may, with the sanction of
appropriate Government instead of awarding a
money compensation in respect of any land,
make any arrangement with a person having a
limited interest in such land, either by the grant
of other lands in exchange, the remission of land
revenue on other lands held under the same title,
or in such other way as may be equitable having
regard to the interest of the parties concerned.
(4)
Nothing in the last foregoing sub-
section shall be construed to interfere with or
limit the power of the Collector to enter into any
arrangement with any person interested in the
land and competent to contract in respect
thereof.
34.
Payment of interest – When the amount
of such compensation is not paid or deposited on
or before taking possession of the land, the
Collector shall pay the amount awarded with
interest thereon at the rate of nine per centum
per annum from the time of so taking possession
until it shall have been so paid or deposited :
Provided that if such compensation or any
part thereof is not paid or deposited within a
period of one year from the date on which
possession is taken, interest at the rate of fifteen
per centum per annum shall be payable from the
date of expiry of the said period of one year on
the amount of compensation or part thereof
which has not been paid or deposited before the
date of such expiry.
52.
Notice in case of suits for anything
done in pursuance of Act. - No suit or other
proceeding shall be commenced or prosecuted
against
any
person
for
anything
done
in
pursuance of this Act, without giving to such
person a month's previous notice in writing of
the intended proceeding, and of the cause
thereof, nor after tender of sufficient amends.
11.
We shall deal with the judgments relied upon by
both sides.
12.
In the case of Lila Ghosh (supra), the Apex Court
has held that interest in terms of Section 34 of the Act is
payable if the compensation payable has not been paid or
deposited before taking possession. In terms of subsection
(2) of Section 31 of the Act in case of any dispute as to the
title to receive the compensation or as to apportionment of it,
the Collector is bound to deposit the amount of compensation
in the Court to which reference under Section 18 of the Act
would be submitted.
Interest under Section 34 of the Act
starts running from the date the compensation is payable.
In the case of Jhandu Lal (Supra), the learned
Single Judge of Punjab High Court upon consideration of
sections 28, 32 and 34 of the Act as existing then, held that
upon plain reading of these provisions, it is evident that the
deposit has to be made in terms of Section 31(2) of the Act to
the Court to which reference lay, if made under Section 18 of
the Act. The Punjab High Court has further held that such a
deposit has to be made even if no reference is actually made.
It is pertinent to note in the said case that the deposit was
made by the Land Acquisition Officer in the Government
treasury.
But the Punjab High Court has held that the
Legislature intended that the deposit ought to be made in the
Reference Court and not in the Government treasury and if
deposit is not made in the Reference Court, the interest will
not cease to run and interest would cease to run only if the
deposit is made in the Reference Court.
In the case of Bhagwan Kulkarni (Supra), the
learned Single Judge of this Court after considering the
several judgments of the Supreme Court and this Court has
held that a suit simpliciter for recovery of the amount due by
way of interest under Section 34 of the Act is maintainable
under Section 9 of C.P.C. and such a suit is not barred.
In the case of Vasant Wale (Supra), the Division
Bench of this Court has held that writ of mandamus would be
maintainable against the Collector for payment of interest
under Section 34 of the Act.
The Division Bench has held
that it is the statutory obligation of the Collector to pay
interest in terms of Section 34 of the Act and it is not
necessary for person interested to make any demand for the
same. The Division Bench has also held that availability of
remedy by way of an appeal would not bar the claimant from
approaching the High Court under Article 227 of the
Constitution of India.
In the case of Laxmi Chand (Supra), relied upon
by Mr. Rodrigues, the Apex Court has held that a suit to
challenge the land acquisition proceedings under the Act
was not maintainable and only remedy available to aggrieved
person is to approach the Constitutional Court i.e. the High
Court or the Supreme Court. The ratio of the said judgment
does not advance the case of the appellants/ defendants
inasmuch as in the present case, what is claimed is the
amount by way of interest under Section 34 of the Act and
challenge is not to the acquisition proceedings.
The judgment of Division Bench of this Court in
the case of Pilerne Citizens Forum (Supra), does not advance
the case of the appellants. In the said case, the Division
Bench of this Court was dealing with the allotment of lands of
Communidade of Pilerne contrary to the provisions of Code of
Communidade. In the said judgment, this Court has held that
once the land was vested in a tenant in terms of 5 th
amendment to Agricultural Tenancy Act, there was no
question of giving up of tenancy by the deemed purchaser.
Having regard to the factual and legal aspects considered in
the aforesaid judgment, the same does not advance the case
of the appellants.
13.
Section 52 of the Act relied upon by Mr. Nadkarni
provides that no suit or proceeding shall be commenced or
prosecuted
against
any
person
for
anything
done
in
pursuance of the Act, without giving to such person a
month's
previous
notice
in
writing
of
the
intended
proceeding, and of the cause thereof, nor after tender of
sufficient amends.
We find merit in the submission of Mr.
Nadkarni that Section 52 of the Act contemplates a suit or
other proceeding against the authority under the Act if cause
of action arises under the Act. No doubt, the Apex Court has
clearly held that the land acquisition proceedings initiated
under the Act by issuing notifications under Sections 4 and 6
cannot be challenged by filing a suit since the Act is Code by
itself and only remedy available to such aggrieved persons is
to approach the Constitutional Courts i.e. the High Court or
the Supreme Court. But in our considered view, the suit to
recover the amount by way of interest in terms of Section 34
of the Act is clearly maintainable under Section 9 of C.P.C.
We are in respectful agreement with the view taken by the
learned Single Judge in the case of Bhagwan Kulkarni
(Supra).
In the present case, admittedly, appellant no.2/
defendant no.2 did not deposit the amount in the Reference
Court after making the award.
Indisputably, the Land
Acquisition Officer in the award dated 06/08/1993 awarded
total compensation in favour of the plaintiff, but refused to
disburse the compensation in view of the fact that the lands
allotted to the tenants were not demarcated and their names
were not removed from the survey records.
There is no
serious dispute that thereafter the plaintiff produced several
documents in support of its contention that separate portions
of lands were allotted to the tenants and the acquired lands
were given separate survey numbers and being satisfied with
the same, the Land Acquisition Officer by order dated
27/06/2001 ordered that the compensation of Rs.39,94,106/-
be paid to the plaintiff and the said amount was paid vide
cheque dated 06/12/2001 which was handed over to the
plaintiff on 15/03/2002. There is no serious dispute that the
plaintiff accepted the said compensation under protest and
without prejudice to its contention that it was entitled to
interest on the said amount. This being the position, in our
considered view, the suit filed by the plaintiff for recovery of
the amount due by way of interest in terms of Section 34 of
the Act is maintainable.
14.
Insofar as the issue of limitation raised on behalf
of the appellants/ defendants is concerned, indisputably, the
Land Acquisition Officer by order dated 27/06/2001 ordered
that the entire compensation be paid to the plaintiff and
pursuant thereto, a cheque dated 06/12/2001 was issued
which was handed over to the plaintiff on 15/03/2002. The
suit was filed on 30/06/2004. As such, it is evident that the
suit was filed within three years of the cause of action.
Therefore, we hold that the suit filed by the respondent was
within the period of limitation.
15.
Having
answered
both
the
points
for
determination
against
the
appellants/
defendants,
the
necessary sequitur is that the appeal is without any merit and
as such, liable to be dismissed.
16.
In the present case, liability to pay the amount by
way of interest under Section 34 of the Act on the part of the
appellants/ defendants has arisen on account of the fact that
the Land Acquisition Officer did not think it appropriate to
deposit the compensation in the Reference Court but kept it
under revenue deposit. In terms of Section 31(2) of the Act,
the Land Acquisition Officer ought to have deposited the
compensation in the Reference Court, once he decided not to
release the compensation in favour of the plaintiff after
holding that the compensation was payable to the plaintiff.
Had the Land Acquisition Officer deposited the compensation
in the Reference Court, the appellants would not have been
liable to pay to the plaintiff the amount denied which is quite
substantial.
No doubt, in the present case, the ultimate
liability to pay the amount is on the Goa Industrial
Development Corporation since the acquisition was for the
benefit of the said Corporation.
We, therefore, deem it
appropriate to send a copy of the judgment to Chief
Secretary, Government of Goa so that in future the Land
Acquisition Officers dealing with such cases take appropriate
steps and deposit the compensation payable in the Reference
Court thereby avoiding liability of the State Government to
pay the interest under Section 34 of the Act. We expect the
Chief Secretary to circulate a copy of the judgment to all the
Land Acquisition Officers in the State of Goa.
17.
In view of the above discussion, we do not find
any merit in the appeal.
Consequently, the appeal stands
dismissed. However, the parties are directed to bear their
own costs.
A. P. LAVANDE, J.
U. V. BAKRE, J.
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